Arbitration Rules | ICSID Rules of Procedure for Arbitration Proceedings |
BIT | Agreement for the Promotion and Reciprocal Protection of Investments Between the Government of the Arab Republic of Egypt and the Government of the State of Kuwait |
Claimant or Almasryia | Almasryia For Operating & Maintaining Touristic Construction Co., LLC |
Ex. [C-] [R-] | Exhibit [Claimant] [Respondent] |
Ex. [CL-] [RL-] | Legal Exhibit [Claimant] [Respondent] |
Hearing | Hearing on Respondent’s Preliminary Objections held in Paris, France on 14 December 2018 |
ICSID Convention | Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated 18, March 1965 |
ICSID or the Centre | International Centre for the Settlement of Investment Disputes |
Request for Arbitration | Claimant’s Request for Arbitration dated October 10, 2017. |
Respondent | The State of Kuwait |
Respondent’s Preliminary Objections | Application of The State of Kuwait Pursuant to Rule 41(5) of the ICSID Arbitration Rules dated September 3, 2018. |
Statement of Claimant | Claimant’s Observations on Respondent’s 41(5) Objections dated September 30, 2018. |
Tr. H. [page:line] | Transcript of the hearing |
VCLT | Vienna Convention on the Law of Treaties |
Tribunal :
Professor Ricardo Ramírez Hernández President
Mr. Pascal Dévaud Arbitrator
Professor Dr. Rolf Knieper Arbitrator
ICSID Secretariat :
Ms. Catherine Kettlewell Secretary of the Tribunal
For the Claimant :
Dr. Ezzat Ahmad Mohammed Youssef
Dr. Mohamed Tanweer Mohamed El-Rafie
For the Respondent :
Mr. Charles L. O. Buderi Curtis, Mallet-Prevost, Colt & Mosle LLP
Ms. Gabriela Álvarez Ávila Curtis, Mallet-Prevost, Colt & Mosle LLP
Ms. Luciana Ricart Curtis, Mallet-Prevost, Colt & Mosle LLP
Ms. Mariana Gómez Vallín Curtis, Mallet-Prevost, Colt & Mosle LLP
Mr. Saud Alqemlas Legal Advice and Legislation Department – Council of Ministers, State of Kuwait
Ms. Noura Al Roudan Legal Advice and Legislation Department – Council of Ministers, State of Kuwait
Ms. Dhuha Alyaseen Legal Advice and Legislation Department – Council of Ministers, State of Kuwait
Ms. Dhuha Al-Sayer Legal Advice and Legislation Department – Council of Ministers, State of Kuwait
Mr. Talal Alzimami Legal Advice and Legislation Department – Council of Ministers, State of Kuwait
Court Reporter :
Ms. Anne-Marie Stallard The Court Reporter Ltd.
Interpreters :
Ms. Maha El-Metwally English-Arabic interpreter
Ms. Michele Antaki English-Arabic interpreter
"Unless the parties have agreed to another expedited procedure for making preliminary objections, a party may, no later than 30 days after the constitution of the Tribunal, and in any event before the first session of the Tribunal, file an objection that a claim is manifestly without legal merit. The party shall specify as precisely as possible the basis for the objection. The Tribunal, after giving the parties the opportunity to present their observations on the objection, shall, at its first session or promptly thereafter, notify the parties of its decision on the objection. The decision of the Tribunal shall be without prejudice to the right of a party to file an objection pursuant to paragraph (1) or to object, in the course of the proceeding, that a claim lacks legal merit." (Emphasis added)
"(1) All time limits, specified in the Convention or the Rules or fixed by a Commission, Tribunal, Committee or the Secretary-General, shall be computed from the date on which the limit is announced in the presence of the parties or their representatives or on which the Secretary-General dispatches the pertinent notification or instrument (which date shall be marked on it). The day of such announcement or dispatch shall be excluded from the calculation.
(2) A time limit shall be satisfied if a notification or instrument dispatched by a party is delivered at the seat of the Centre, or to the Secretary of the competent Commission, Tribunal or Committee that is meeting away from the seat of the Centre, before the close of business on the indicated date or, if that day is a Saturday, a Sunday, a public holiday observed at the place of delivery or a day on which for any reason regular mail delivery is restricted at the place of delivery, then before the close of business on the next subsequent day on which regular mail service is available." (Emphasis added)
"[T]he tribunal need not accept at face value any factual allegation which the tribunal regards as (manifestly) incredible, frivolous, vexatious or inaccurate or made in bad faith; nor... accept a legal submission dressed up as a factual allegation. The Tribunal does not accept, however, that a tribunal should otherwise weigh the credibility or plausibility of a disputed factual allegation."16
"must ordinarily presume the facts which found the claim on the merits as alleged by the claimant to be true (unless they are plainly without any foundation). In the application of those presumed facts to the legal question of its jurisdiction, the tribunal must then decide whether, as matter of law, those facts fall within or outside the scope of the consent to arbitrate. Where the objection is taken under the procedure provided in Rule 41(5), it will decide to grant the objection if one or more of the claims fall clearly outside the scope of its jurisdiction so that, for the purpose of these proceedings, the claim must be treated as being 'manifestly without legal merit'."18 (emphasis added)
"1 - Disputes which arise between a Contracting State and an investor belonging to the other Contracting State, in relation to an investment in the territory of the first State which returns to the latter, shall be settled, as far as is possible, by amicable means.
2- If that dispute cannot be settled within six months of the date on which either of the two parties to the dispute requested an amicable settlement by notifying the other party in writing, then the dispute shall be referred for resolution by one of the following means, to be chosen by the investor who is a party to the dispute.21 (Emphasis added)
"The six-month waiting period requirement... is designed precisely to provide the State with an opportunity to redress the dispute before the investor decides to submit the dispute to arbitration.... by imposing upon investors an obligation to voice their disagreement at least six months prior to the submission of an investment dispute to arbitration, the Treaty effectively accords host States the right to be informed about the dispute at least six months before it is submitted to arbitration. The purpose of this right is to grant the host State an opportunity to redress the problem before the investor submits the dispute to arbitration... Claimant has deprived the host State of that opportunity. That suffices to defeat jurisdiction."22
"[It] constitutes a fundamental requirement... It is not an inconsequential procedural requirement but rather a key component of the legal framework established in the BIT and in many other similar treaties... It amounts to... an essential mechanism... which compels the parties to make a genuine effort to engage in good faith negotiations before resorting to arbitration. "23
"The explicit requirements that the parties must seek to engage in consultations and negotiations... and that there be a... waiting period... are accepted by the Tribunal as pre-conditions to submitting the dispute to arbitration... compliance is an essential element of Turkey's prospective consent to qualify its sovereignty to permit unknown future investors of the other contracting State to claim relief under the terms of the BIT against it in an international forum."24 (Emphasis added)
"Tribunals have generally tended to treat consultation periods as directory and procedural rather than as mandatory and jurisdictional in nature. Compliance with such a requirement is, accordingly, not seen as amounting to a condition precedent for the vesting of jurisdiction... It should also be noted that in the prolonged period of time from termination of the PSI Agreement by Pakistan to the submission of SGS's written consent under the BIT, there was little indication of any inclination on the part of either party to enter into negotiations or consultations in respect of the unfolding dispute. Finally, it does not appear consistent with the need for orderly and cost-effective procedure to halt this arbitration at this juncture and require the Claimant first to consult with the Respondent before re-submitting the Claimant’s BIT claims to this Tribunal."27 (Emphasis added)
"In the Arbitral Tribunal’s view, however, properly construed, this six-month period is procedural and directory in nature, rather than jurisdictional and mandatory. Its underlying purpose is to facilitate opportunities for amicable settlement. Its purpose is not to impede or obstruct arbitration proceedings, where such settlement is not possible. Non-compliance with the six-month period, therefore, does not preclude this Arbitral Tribunal from proceeding. If it did so, the provision would have curious effects, including: - preventing the prosecution of a claim, and forcing the claimant to do nothing until six months have elapsed, even where further negotiations are obviously futile, or settlement obviously impossible for any reason ; - forcing the claimant to recommence an arbitration started too soon, even if the six-month period has elapsed by the time the Arbitral Tribunal considers the matter.. In this case, the course of events amply demonstrated that any further delay on BGT’s part would not have served any useful purpose. By the time the Request for Arbitration was filed, a long process of negotiation and renegotiation had already failed, and the Republic’s position was entrenched - in particular by virtue of Minister Lowassa’s public statement of 13 May 2005, and the steps that had since been taken to deport City Water personnel, and take over its operations. It was therefore entirely reasonable for BGT to proceed to arbitration, rather than seeking to resolve the dispute through "local remedies or otherwise"."29 (Emphasis added)
"...the claimant (the second party) purchased 5% of the Kuwaiti land owned by the first party for an amount of $20 million in order to establish with the first and third party residential and touristic communities and to invest in this land to establish such constructions and touristic resorts and to obtain 10% of all profits gained from land and constructions... the Kuwaiti government prevented the claimant from taking ownership of the land, and seized and expropriated it for public benefit and did not hand over or compensate the claimant for the value of its share."35 (Emphasis added).
"1 - (a) Investments made by investors belonging to either of the two Contracting States in the territory of the other Contracting State shall not be subject to nationalisation, expropriation, or confiscation, nor shall they be subject, directly or indirectly, to measures whose effect is equivalent to nationalisation, expropriation, or confiscation (referred to collectively hereinafter as "expropriation") by the other Contracting State, except for a public purpose relating to a national interest of that Contracting State, and then in return for compensation that is immediate, sufficient and effective, and on the condition that those measures are taken on a non-discriminatory basis, and in accordance with legal procedures in general usage.
2- "Expropriation" also includes cases when a Contracting State expropriates the assets of a company or enterprise which was set up or founded in accordance with the laws in force in its territory, in which an investor belonging to the other Contracting State has a majority or important share, through owning stocks, shares, bonds, rights, or other interests.
3- The term "expropriation" also includes any interference or regulatory procedures carried out by a Contracting State such as incorporating or restricting the investment, or the forced sale of all or part of the investment, or any other similar procedures having the same effect of seizing the property or expropriating it, and arising from which procedures, the investor is in actuality dispossessed of his property, or his majority or substantial interest in his investment, or suffers loss or damage to the economic value of the investment."
"Claimants must have held a property right of which they have been deprived. This follows from the ordinary meaning of the term. The Oxford English Dictionary defines 'expropriate’ as '(of the state or an authority) take (property) from its owner for public use or benefit’/'dispossess (someone) of property’"... The Tribunal in Waste Management II made the same point when it held that the object of expropriation is the property of the claimant... In order to determine whether an investor/claimant holds property or assets capable of constituting an investment it is necessary in the first place to refer to host State law. Public international law does not create property rights. Rather, it accords certain protections to property rights created according to municipal law."37 (Emphasis added)
"The non-registration shall result in that the said rights shall not be created, transferred, changed or cancelled among the concerned persons or others."44
Arbitrators’ fees and expenses
Prof. Ricardo Ramírez Hernández | US$ 95,218.60 |
Mr. Pascal Dévaud | US$ 112,858.1147 |
Prof. Dr. Rolf Knieper | US$ 38,822.22 |
ICSID’s administrative fees | US$ 84,000.00 |
Direct expenses (estimated)48 | US$ 22,460.27 |
Total | US$ 353,359.20 |
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